On October 29, Karim Khan, chief prosecutor of the International Criminal Court (ICC), issued a warning to the Israeli government after visiting the Rafah-Egypt border: If it didn’t prioritize the lives of Gazan civilians, Israel would face legal repercussions on the international level. Nearly seven months later, Khan reaffirmed his commitment to holding Israel accountable. On May 20, Khan applied for the arrest warrants of Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, in addition to Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri and Ismail Haniyehm. Khan accuses the two Israelis of starvation as a method of war, intentional attacks on civilians and extermination as a crime against humanity.
Since 2021, the ICC has claimed the power to investigate any crimes committed in Gaza, the West Bank and East Jerusalem.
Israel is a non-signatory to the Rome Statute, which gives the ICC jurisdiction to investigate four core international crimes (genocide, crimes against humanity, war crimes and the crime of aggression) committed within states that have signed it. However, in 2015 the Palestinian Authority did ratify the Rome Statute, effectively granting the ICC authority over the Palestinian territories. In 2021, the ICC concluded, by majority vote, that its authority extends to any territory occupied by Israel since 1967, including the Gaza Strip, the West Bank and East Jerusalem. Ever since, the ICC has claimed the power to investigate any crimes committed in these areas.
“An identical process is happening right now in the ICC regarding the war in Ukraine,” notes David Zeglen, a lecturer in the Program in International and Comparative Studies at the University of Michigan. Zeglen notes that although Russia withdrew from the Rome Statute in 2016, “Ukraine has accepted the jurisdiction of the ICC to investigate crimes happening in its country, therefore Russia can be investigated.”
Palestinian statehood, however, is contested by Israel and its allies. Eetta Prince-Gibson, Moment’s Israel editor, says that Israel’s denial of Palestinian statehood and the ICC’s equal treatment of Netanyahu (an elected head of state) and Hamas leaders, makes Khan’s request especially controversial for many Israelis. Hamas’s leader in Gaza, Sinwar, their military commander, Al-Masri, and the leader of the Hamas political bureau, Haniyehm, are facing accusations of extermination, murder, hostage-taking, rape and torture.
Israeli politicians such as Benny Gantz, Israel’s war cabinet minister, have condemned the equivalence made between Netanyahu and Gallant and the Hamas leadership. President Biden called the request “outrageous,” echoing the sentiments of many Washington politicians who remain steadfast in defending a longtime ally of the United States.
In order for Khan to issue the arrest warrants he’s applied for, he will need approval from the ICC’s pre-trial judges who must determine there are “reasonable grounds to believe” the Israeli and Hamas leaders committed the aforementioned crimes. The pre-trial judges in this case include Judge Iulia Motoc from Romania, Reine Alapini-Gansou from Berlin and Nicholas Guillou from France. Historically, a pre-trial chamber has never denied a prosecutor’s request. If the warrants are issued, member states of the ICC, including France and Belgium—U.S. allies who have defended ICC independence following Khan’s statement—are required to arrest the Israeli and Hamas leaders if they enter their countries. However, cooperation of member states is not ensured. “Historically, member states of the ICC have refused to arrest individuals in their country who have an arrest warrant, so it is an open question whether the individuals in this case will even ever face prosecution,” Zeglen notes. Among those with open ICC arrest warrants are Russian President Vladamir Putin, former Sudanese President Omar al-Bashir, and Ugandan warlord Joseph Kony.
If arrested, Netanyahu, Gallant and the Hamas leaders would be taken to The Hague, in the Netherlands, to await trial. Zeglen emphasizes that if the investigation leads to a trial, conviction is not guaranteed and could take up to a decade or longer.
While hesitant to speak for all Israelis, Prince-Gibson says that Khan’s statement probably didn’t come as a shock to most. “In Israel, there are those who will say, ‘No, I’m not surprised, what did we think was going to happen when we behave this way?’ and those who are not surprised because they’re going to say, ‘Well the whole world is against us, what did you think?’” Prince-Gibson also believes that the latter perspective, mainly representative of the Israeli right, could reinforce support for Netanyahu among his base. Others in Israel, such as the human rights group B’Tselem (The Israeli Information Center for Human Rights in the Occupied Territories), which has been critical of Israel’s military offensive since the beginning of the war, are praising the ICC for holding their government accountable for alleged crimes in Gaza.
Prince-Gibson articulates the frustration of many left-leaning Israelis, stating, “Most people in the world who feel loyal to their country but don’t see their country as always right or wrong might say, ‘I’m ashamed, I’m ashamed at how my country is behaving, but I wish this criticism was coming from within and not from the outside. I wish this was a stance taken by my own country, and that we didn’t need an outside arbiter to say we’re behaving immorally.’”
Zeglen notes that moves like this by the ICC, as well as a separate case against Israel in the International Court of Justice (ICJ), continue to erode Israel’s international reputation.
Khan’s request comes amid a wave of international scrutiny toward Israel. On Sunday, an Israeli Defense Force airstrike against Rafah killed at least 45 Palestinians, which Netanyahu has called a “tragic mishap.” Even with the mounting criticism against such attacks, ICC intervention against Israel would be unprecedented as the first prosecution of a head of government who remains supported by other Western nations. “It’s a tremendously important moment for the international community because these same [Western] countries continually applaud the ICC when it pursues prosecution against leaders in the non-Western world,” says Zeglen at the University of Michigan. “But if you want to have a truly international rules-based order, that means all states must be held accountable for committing human rights abuses.”
[Read: A Zoom Room With A View: One Man’s Window Into A Rafah Refugee Camp]
Zeglen notes that moves like this by the ICC, as well as a separate case against Israel in the International Court of Justice (ICJ), continue to erode Israel’s international reputation. On Friday, the ICJ ordered Israel to “immediately halt” its military offensive in Rafah. Unlike the ICC, which holds individuals accountable for international crimes, the ICJ deals with disputes between states. The ICJ ruling is a product of South Africa’s case against Israel, ongoing since December, that claims Israel is committing genocide in Gaza.
Meanwhile, Netanyahu remains undeterred by Khan and the ICC, and has pledged to continue the war until all hostages are released and Hamas is destroyed.
Top Image: World Economic Forum: Israel’s Economic and Political Outlook: Benjamin Netanyahu (via flickr)